Legal Memorandum: Motion to Dismiss for Failure to Prosecute

Issue: WHETHER RULE 41(b)(2) OF THE MASSACHUSETTS RULES OF CIVIL PROCEDURE CAN BE USED TO AUTHORIZE A DISMISSAL OF A PLAINTIFF’S ACTION WITH PREJUDICE.

Rule 41(b)(2) provides, in relevant part that “[o]n motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court.”  Mass. R. Civ. P. 41(b)(2) (1974).  The granting or denial of a motion to dismiss for failure to prosecute is committed to the court’s sound discretion.  Bucciere v. New England Tel. & Tel. Co., 396 Mass. 639, 641, 488 N.E.2d 1, 2 (1986).  The power to invoke the sanction of dismissal for failure to prosecute is necessary in order to prevent undue delays and to avoid congestion of court calendars.  Id. (citing Link v. Wabash R.R., 370 U.S. 626 (1962)).

In Ahern v. Warner, 16 Mass. App. Ct. 223, 450 N.E.2d 662 (1983), the plaintiff appealed from a Rule 41(b)(2) judgment of dismissal of her complaint seeking injunctive relief and damages from an adjoining landowner.  Id. at 223, 450 N.E.2d at 664.  The action had been dismissed because the complaint was not served until twenty-two months after the summons had issued.  Id.  The appeals court  noted that the mere passage of time does not require a dismissal, but that the passage of time must constitute prejudice to the defendant, afford the plaintiff an unfair tactical advantage, or involve harassment of the defendant.  Id. at 226, 450 N.E.2d at 666. […]